TB3-08779

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB3-08779 TB3-08780 TB3-08781 TB3-08782 Private Proceeding / Huis clos Re-Determination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (a.k.a XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 30, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Max Chaudhary Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), XXXX XXXX XXXX (the associated Appellant), and XXXX XXXX and XXXX XXXX(the minor Appellants), citizens of Iran, appeal a decision of the Refugee Protection Division (RPD), denying their claims for refugee protection. The Appellants did not submit new evidence pursuant to section 110(4) of the Immigration and Refugee Protection Act (IRPA) at the time they filed their Appellant's' record, but they requested an oral hearing. They have, however, submitted a letter and a document on January 14, 2014, and asked the RAD to consider the document to be new evidence. The Appellants request that the Refugee Appeal Division (RAD) set aside the decision of the RPD. [2] Pursuant to section 111(1)(a) of IRPA, the RAD confirms the determination of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. The appeals are dismissed. Background [3] The Appellant alleged that an incident which led to her expulsion from Pars University in Iran contributed to her disillusionment with Islam. The Appellant further alleged that during a family holiday in Greece, they met an Iranian couple, XXXX and XXXX, who were Muslim converts to Christianity and as a result of this contact they attended their first Christian meeting at XXXX and XXXX home in Iran. They continued to attend monthly services and hosted some meetings in their home. [4] The Appellants went to London for a holiday in March 2013 and they were detained and interrogated on their return by Iranian officials as to whether they attended any demonstrations. [5] The Appellants came to Canada for a holiday on July 7, 2013. On August 8, they were informed by the Appellant's mother that XXXX and XXXX had been arrested at an underground church meeting and the Sepah (Iranian security force) had searched the Appellants' home and seized their Farsi Bible and their computer. As a result the Appellants made claims for protection in Canada. After they made their claims they joined a Farsi-language Christian church and they were subsequently baptized. [6] The associate and minor Appellants are represented by the principal Appellant's Basis of Claim Form (BOC) narrative. The associate Appellant is also represented by the Appellant's testimony. The Appellant was appointed the designated representative of the minor Appellants. The Issues [7] The RPD panel indicated the determinative issues are credibility, the legitimacy of the Appellants' religious conversion and their residual sur place claim. [8] The Appellant submits that the issues in regard to these claims concern: whether the panel erred in law by improperly assessing a sur place claim, whether the panel erred in law by failing to consider the totality of evidence and ignoring submissions indicating the panel may have erred, whether the panel erred in law by making credibility findings that were impermissibly vague, and improperly substituting testimony by the Appellants for its own conjecture. The Role Of The RAD [9] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [10] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [11] In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [12] The Court determined that, in conducting its assessment, the RAD can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error." [13] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Late Submissions [14] The Appellants submitted a letter and a one-page document (a summons) on January 14, 2014, and asked the RAD to consider the document as new evidence. [15] The RAD has reviewed and assessed the initial RAD consideration of this submission and concurs with its analysis and finding. [16] As cited in the initial RAD Reasons, rule 29 deals with the issue of late submission of documents, and states: A person who is the subject of an appeal who does not provide a document or written submissions with the appellant's record, respondent's record or reply record must not use the document or provide the written submissions in the appeal unless allowed to do so by the Division. If the person who is the subject of an appeal wants to use a document or provide written submissions that were not previously provided, the person must make an application to the Division in accordance with rule 37.The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence by the Minister. [17] The RAD notes the Appellants sent a letter but did not submit the required application pursuant to rule 29. The RAD further notes that the letter accompanying the document merely states the Appellants "obtained this document with great difficulty" but fails to state why it was difficult to obtain a copy of the summons that was allegedly issued by Iranian authorities. [18] In the context of citations above and the lack of a substantive explanation regarding the delay in disclosing this document, the RAD does not accept this document as new evidence and these appeals will be considered on the basis of the RPD record, the Appellants' record and the documentary evidence dated December 19, 2013 on appeal. The RAD notes that the Appellant's submission stated that she relies on "the facts as articulated by the RPD in the impugned decision and the Basis of Clam forms of the Appellants." Application for An Oral Hearing [19] The RAD notes that section 110 (3) of IRPA requires the RAD proceed without a hearing on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. Subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence admitted under subsection 110(4), subsection 110(5) or Minister's evidence. As noted above, the RAD has not accepted the new evidence submitted by the Appellant and therefore the Appellant's application for an oral hearing is dismissed. Credibility [20] The Panel found the Appellant's story is not credible and the Appellants' behaviour and inconsistent with that of people who are genuine converts to Christianity. The Appellants' failure to attend church in Canada before receiving the call from Iran [21] The panel questioned the Appellant regarding the importance of Christianity in her life and she confirmed that it was so important she was willing to undertake serious risks in Iran in order to pursue her devotion to her faith. The panel noted that she and her husband did not attend a church in Canada for almost five weeks after their arrival in Canada and until they filed their claims for protection. [22] The Appellant explained she would have to return to Iran and her "record" of having attended a church in Canada could have caused problems for her. The panel asked how Iranian authorities would know and she responded it is possible they could have known and she had to be cautious. The panel found the Appellant's testimony and actions are in stark contrast, and noted that someone who was so devoted to Christianity that she risked her life and that of her family in order to pursue this religion in Iran should be attending a church regularly in a place where one can do so freely and safely. [23] The panel found the Appellant's behaviour suggested she is not quite as devoted a Christian as she testified, and at worst, that she has manufactured a claim of being a Christian to support a refugee claim in Canada. The panel found that in either case, this has a negative impact on her credibility and undermines her assertion of being a devoted Christian. [24] The panel noted as well, the associate Appellant testified that while the family was in England on holiday for a week, they did not enter a church. When the panel asked why, he stated it was because they were on holiday. The panel rejected the explanation and noted that Christianity was so important to them that they allegedly risked their lives in Iran. The panel indicated that it doubted their conversion was legitimate. The Appellant's Pastor's testimony [25] The panel asked the Pastor if he was aware that the adult Appellants were Christians in Iran. He responded that he was unaware of this or that they ever attended church in Iran. The panel noted the Appellants attended the Pastor's church twice a week for approximately three months and found it inexplicable that the Appellants never mentioned their path to Christianity had begun some time ago in a country where such actions could be life-threatening. The panel found it suspicious that the Appellants did not mention to the Pastor their background in Christianity as a reflection of their commitment. The panel found this omission has a negative impact on their credibility. Failure to claim refugee status in England and reavailment to Iran [26] The panel noted that the Appellant testified she began to fear living in Iran from the moment she and her husband began walking the path toward Christianity and attended the house church for the first time. The panel drew a negative inference in regard to their failure to seek refugee protection in England in March 2013, if they actually feared living in Iran at that time. The Appellant explained that the Sepah problem had not yet occurred. The Appellant further stated that they loved Iran so much they were prepared to return to Iran and risk their lives to keep practising their religion. [27] The panel rejected this explanation and found it unreasonable that they would have returned to Iran if they were truly afraid for their lives. In the context of their failure to tell their Pastor in Toronto of their involvement with a house church in Iran, the panel found the evidence suggests that the Appellants were willing to return to Iran because there was no risk to them because they were not involved with the church while there. [28] The panel found the Appellants' failure to claim in England and their reavailment to Iran "strongly suggests" a lack of subjective fear on their part. The panel found this factor, combined with other credibility concerns noted above is enough to find the Appellants not deserving of Canada's protection. [29] The Appellant submits the panel erred in law by making credibility findings that were impermissibly vague and improperly substituted testimony by the Appellants for its own conjecture. [30] The RAD has reviewed all of the evidence concerning the Appellants' activities as to their alleged Christian practice before coming to Canada. The RAD notes the panel provided substantive analysis in regard to the issues of the Appellants' non-attendance at a church in Canada for almost five weeks before making their claims, their failure to inform their pastor in Toronto that they came to Canada as Christians, their failure to make claims in the UK and their reavailment to Iran after stating they were in fear of persecution because of their house church practice in Iran. [31] The RAD acknowledges that in some cases the panel's findings were not as precise as they should have been, but the RAD finds the panel's concern regarding the credibility of the Appellant's testimony in this regard is clear. The RAD notes in this regard that it is also clear the panel considered the Appellant's explanations, and refers to them in its Reasons. The RAD further finds that individually each of these issues might not be the basis for a denial of refugee protection, but cumulatively they are a sufficient basis for finding, as did the panel, that the Appellants are not credible witnesses and are not deserving of Canada's protection. The Appellant's Religious Knowledge [32] The panel noted the Appellant was able to answer basic questions concerning Christian teachings and practice. The panel further noted however that these are questions anyone could answer from the Internet or from attending baptism classes as the Appellant did. The panel found that while the Appellant's Christian knowledge was sufficient, it alone is not sufficient to overcome its credibility concerns with the Appellants' actions. Sur Place Claim [33] The panel found that the Appellants are not genuine converts and that they did not attend church in Iran as described, and that as a result their story about Sepah pursuing them, on a balance of probabilities, is untrue. [34] The panel acknowledged it must consider whether their actions in Canada have resulted in a well-founded fear of persecution if they were to return to Iran. The panel found the Appellants' motive in attending a church in Canada and being baptized is to establish a basis for a refugee claim. [35] The panel noted documentary evidence in the National Documentation Package that Christians in Iran can practice their religion and the issue only arises when Christians try to convert Muslims to their religion. This documentation further indicates that problems with authorities occur with regard to evangelical activity targeting Muslims and that authorities focused on evangelical churches.2 [36] The panel noted that no evidence was disclosed indicating the Appellants ever attempted to convert anyone or that they wanted to do so. The panel further noted that there was no evidence that the Appellants would engage in these risky activities if they were to return to Iran. The panel found that as long as the Appellants do not proselytize and attempt to convert Muslims, they will not be persecuted for their Christian beliefs were they to return to Iran. [37] The panel found that the Appellants' conversion to Christianity to be one of convenience, and created for the purpose of establishing a refugee claim in Canada. [38] The Appellant submits the panel erred in law by improperly assessing a sur place claim. The Appellant further submits the panel paid only lip service in assessing the dangers the Appellants would face if they were to return to Iran. The Appellant submits as well that the panel refused to consider whether the Appellants would be considered apostates. [39] The Appellant cites in this regard the Federal Court decision in Ejtehadian3 in which the Court stated that credible evidence of the claimant's activities in Canada that are likely to substantiate potential harm on return must be expressly considered by the IRB even if the motivation behind the activities is non-genuine. [40] The RAD has reviewed and assessed all of the evidence in the RPD record concerning the Appellants' sur place claims. The RAD agrees with the Appellant that the panel failed to consider the risk to the Appellants of being considered apostates and whether their actions in Canada in converting to Christianity, whether genuine or not, may have come to attention of authorities in Iran and therefore be the basis of a well-founded fear of persecution in that country. [41] The RAD notes that the panel has found the Appellants' conversions to Christianity are not genuine. The RAD has reviewed and assessed the evidence in this regard concerning the Appellant's credibility and concurs with the panel's findings concerning the Appellants' actions before their arrival in Canada, that they were not involved in Christian church activities in Iran. [42] The RAD finds, on the basis of its review of the totality of evidence in the RPD record, the Appellant's lack of credibility concerning their alleged Christian practice in Iran before coming to Canada undermines the Appellants' allegations concerning the genuineness of their Christian practice in Canada. The RAD cites in this regard the Federal Court decision in Jiang4 in which the Court stated the Board must be entitled to import its credibility findings into its assessment of an applicant's sur place claim. [43] The RAD finds that in the context of the lack of genuineness of these conversions, that the Appellants would not practice Christianity if they were to return to Iran. [44] The Appellants submit that the panel erred in law by failing to consider the totality of evidence and by ignoring submissions indicating the panel may have erred. The Appellant notes in particular documentary evidence that Muslims considered to be apostates are faced with severe sanctions in Iran. [45] The RAD has acknowledged above the panel's failure to consider the Appellants' jeopardy in Iran in the context of documentary evidence concerning the treatment of apostates. The RAD notes as well that the panel's finding concerning the Appellants' ability to practice Christianity in Iran is confusing in the context of its other finding that the Appellants' conversions were not genuine. [46] The question remains as to whether they would be considered to be apostates by Iranian authorities even if their conversions were not genuine, if they were required to return to Iran. The RAD finds in this regard it is able to repair and supplement the panel's sur place analysis. The RAD notes that no evidence was disclosed indicating that the Appellants' conversion to Christianity, genuine or not, has come to the attention of Iranian authorities. In this context and in the context of findings above and the totality of evidence in the RPD record, the RAD further finds the Appellants remain Muslims, that they would not practice Christianity in Iran, and that they would not be perceived as apostates by Iranian authorities. The RAD finds as well that the Appellants are not refugees sur place and they are able to return to Iran without fear of persecution. Disposition [47] Pursuant to section 111(1)(a) of IRPA, the RAD confirms the determination of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. The appeals are dismissed. (signed) "Milton Israel" Milton Israel June 30, 2015 Date 1Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 RPD's Record, Exhibit 6, National Documentation Package (NDP) for Iran (3 May, 2015), item 12.1, p. 3, item 12.2, p. 15 3 Ejtehadian, Mostafa v. M.C.I. (F.C., no. IMM-2930-06), Blanchard, February 12, 2007, 2007 FC 158 4 Jiang, Sumei v. M.C.I. (F.C., no. IMM-13-12), Zinn, September 11, 2012, 2012 FC 1067 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June 2, 2015) RAD File No. / N° de dossier de la SAR : TB3-08779 TB3-08780 TB3-08781 TB3-08782